Gur Sharan Lal, J.
1. Sri R C. Baipai Temporary Civil and Sessions Judge. Barabanki has made this reference under Section 438 Cr. P. C. in the following circumstances:
One Ram Chandra, who was the applicant in the criminal revision before the learned Judge, was the petitioner in an application made by him before the Sub-Divisional Magistrate. Nawabgani Barabanki, under Section 145 Cr. P. C., giving out that he was in : possession over 88 plots of agricultural land but that the opposite parties numbering twelve wanted to occupy the land forcibly though they had no concern with the same and there was apprehension of breach of the peace. The application was admitted and Ram Chandra as well as the opposite parties were required to file written statements of their claims. The land in question was also attached. The opposite parties did not jointly claim to be interested or possessed of all the 88 plots. On the other hand, some of them claimed to be in possession by right over some plats, some others over other plots and so on. On the basis of affidavits and documents the learned Magistrate came to the conclusion that on the date of the preliminary order and within two months next previous to it Ram Chandra and his brothers were in possession of three out of eighty eight plots. The opposite parties were some singly and some in groups found to be in possession of most of the remaining plots. In respect of seven plots none of the contesting parties was found to be in possession. One of them was held to be a grave-yard and that was held to be the property of the Gram Sabha. Three of the remaining six plots were found in possession of persons not parties to the proceedings, while regarding the remaining three there was no satisfactory evidence as to who was in possession. It was held that there was no apprehension of breach of the peace in regard to those seven plots and the attachment over them was lifted. In respect of the remaining plots the parties not found in possession were forbidden from taking possession from those who were found in possession.
2. Ram Chandra Questioned the order of the Magistrate in the revision filed by him on the ground that there was multifariousness in the proceedings inasmuch as all the opposite parties were not jointly interested in all the Plots and the proceedings taken by the Magistrate were consequently illegal. Reliance was placed before the learned Additional Sessions Judge on behalf of Ram Chandra on a single Judge decision of this Court in Sarupa v. State; (1966) All WR (HC) 704. The learned Additional Sessions Judge reiving on that decision was of the opinion that the order of the learned Magistrate was liable to be quashed on the ground of multifariousness.
3. We have heard Shri K.S. Varma learned Advocate for Ram Chandra, and Shri Abid Ali representing opposite parties Nos. 1 to 12. No counsel has appeared before; us for the State who is opposite party, No. 13. In the aforesaid Sarupa's case) : 1966 All WR (HC) 704 the facts were that one Dhumi Khan applied for proceedings under Section 145. Criminal P. C. against six persons on the allegation that they were trying to interfere with his possession over certain agricultural plots. The said six opposite parties claimed to be in possession of separate parcels of the land in their own right independently of each other. Before the Magistrate an objection was raised by -the opposite parties that proceedings under Section 145 were misconceived and the case should be thrown out on the ground of multifariousness. The Magistrate trying that case did not decide the objection and on the other hand referred the dispute to the Munsif under Section 146 Criminal P. C. The Munsif held Dhumi Khan to be in possession of all the plots except two which were found to be in the possession of one Smt. Samia.
Thereupon the opposite parties took the matter before the Sessions Judge who made a reference to this Court and the same was decided bv Unival. J. Before Unival. J. reliance was placed in respect of the reference to a single Judge decision of the Orissa High Court in Radhashyam Patri v. Ranka Rangadhar Panda : AIR1962Ori161 . Relyine on that case Unival. J. accented the reference with the observation that he was clearly of the opinion that in a case like that before him where the various plots claimed by Dhumi Khan were in possession of different parties who claimed possession over them under different title and there was nothing common as between the different contestants, it was wholly illegal to take recourse to the provisions of Section 145 against all of them in one proceeding. The effect of this decision would be that if a person comes forward claiming that he is being disturbed in his possession of several items of property by a set of persons, then if it is ultimately found that all those persons were not commonly interested in each item of property, the application under Section 145. Criminal P. C, should be dismissed. Since the dispute between the petitioner and those opposite parties would still remain, the consequence of such a view would be that the petitioner should proceed again by filing separate applications under Section 145. Criminal P. C. against separate sets of persons claiming separate rights on the several items of property.
We have gone through the report of the Orissa case, referred to above, and we find that the decision in that case was no authority for the view which Unival. J. took about the illegality of the proceedings. That case laid down nothing more than that where there are several disputes in respect of separate parcels of land and the parties claim distinct parcels of land to be in their possession, hearing of all the disputes in one proceeding must necessarily cause prejudice specially as regards leading of evidence on the question of possession and that there should, therefore, be separate proceedings in such cases. There too the final order under Section 145, Criminal P. C, was impugned in revision by the opposite parties who were claiming separate rights in respect of separate parcels of the disputed property. It will appear that the decision in the Orissa case was given on the basis of prejudice which had been caused to the opposite parties by reason of their affidavits being examined in a general way and not on the ground of any illegality in the initiation of proceedings against several persons together.
A recent single Judge case of this Court has also been relied upon by the learned Counsel for Ram Chandra, being Mata Prasad v. Sahdeo Prasad 1970 Cri LJ 1680 (All) decided by O. P. Trivedi. J. That was however, a quite different matter because several applicants claiming possession over separate and distinct portions of land against several opposite parties claiming title under different title deeds had joined together in making one application under Section 145. Criminal P. C.... That case is out of the point. So far as Sarupa's case. 1966 All WR (HC) 704 is concerned, we are unable to agree with the law laid down in that case. We have already pointed out that the case went much farther than what was laid down in the Orissa case.
A person in possession of a property may be disturbed in his possession not only by a particular person or persons laving some claim to the property but also by his or their supporters. The person claiming to be in possession is bound to cite as opposite parties all those persons who want to disturb his possession and from whom he apprehends breach of the peace. If there are several items of property and a set of persons wants to disturb his possession in respect of all those items, he will naturally implead all those persons as opposite parties in respect of all the items of property and where he alleges those parties to be act-ins jointly in disturbing him in all the items of property, he can certainly make one application in respect of all the items of property and cite all those persons as opposite-parties. Where the opposite parties aforesaid come and do not make a joint claim in respect of all the items of property in dispute but they claim separate items in separate groups or sets, the Magistrate concerned can certainly call upon the petitioner before him to state whether he persists in his allegation against all the opposite parties jointly trying to oust him of his possession and if the petitioner persists in his allegation and does not agree that only groups amongst the opposite parties claiming separately separate items of the disputed property be treated as the parties from whom breach of the peace is apprehended in respect of separate items of the property, the Magistrate will be bound to proceed against all of them in the same proceeding. In case he finds all of them to be disturbing the petitioner's possession in respect of each item of property he will have to pass an order and on finding the petitioner to be in possession restrain all of them from interfering with the petitioner's possession of every item of property. If. however, he comes to the conclusion that all the opposite parties were not trying to disturb the possession of the petitioner in respect of each item, then he will pass orders according to his findings. If there is any objection that the opposite parties would be prejudiced by there being one proceeding in respect of all the items of the property, it will be open to the Magistrate, in the particular circumstances of the case, to separate the proceeding in respect of each item retaining all the opposite parties as opposite parties in each case but he cannot in advance assume on the basis of the written statements filed by the opposite parties before him that all the opposite parties were not disturbing the petitioner's possession in respect of each item of property. If there is only one proceeding and he finds, as has been found in the instant case, that some of the opposite parties were in possession of some plots and some of other plots and the like, he can pass suitable orders as in the instant case There will be no question of illegality and the only question that arises for consideration would be whether one proceeding would cause prejudice to any of the parties.
4. In the instant case the applicant Ram Chandra himself named all the opposite parties in one proceeding in his application which he filed in regard to as many as 88 plots claiming that all the opposite parties were trying forcibly to take possession of those plots. It does not appear that at any stage either Ram Chandra himself or the opposite parties raised an objection before the Magistrate that there should be separate proceedings in respect of separate plots and not one proceeding. It also does not appear that Ram Chandra at any time changed his original stand that all the twelve opposite parties as one group were trying to forcibly take possession of his 88 plots. So there was no question of prejudice and of all the parties Ram Chandra in particular can hardly be allowed to complain after the decision has gone against him substantially that there was illegality in the proceeding and that separate proceedings should have been drawn UP according to the claims made by the opposite parties.
5. We are therefore, of the opinion that the reference must be rejected and we do it accordingly. Since it appears that some other points were also raised in the revision by Ram Chandra, the learned Additional Sessions Judge would proceed to consider those points since the reference made by him was only on the preliminary point which we have disposed of.